Full disclosure is best route for case managers to take as patient advocates
Panel takes a hard line on the ethics of managed care
The reputation of case managers is on the line. If you continue to call yourself an advocate for patients in today’s managed care environment, you must ask yourself some tough questions about your personal ethics, a panel of experts told case managers at the recent Case Management Society of America’s (CMSA) annual conference in Minneapolis.
Case management ethics begins with "truth-telling," says George J. Annas, JD, MPH, professor and chair of the health law department at the Boston University School of Public Health. "The patient must fully understand your role, and that begins with full disclosure and informed consent for case management services. You cannot be a patient advocate without truth-telling."
How do ethics fit into the equation when there is a need to manage costs and advocate for patients? Annas says it begins when you thoroughly explain your role to patients. "The patient must understand your role. That includes who pays your salary. Patients must know what their reasonable medical options include. That means fully informing the patient about the consequences of their medical options — both covered and uncovered benefits. We don’t have to give patients everything they want. We have to give them everything they need that is covered by their insurance contract. If case managers fully inform patients about all recommended options, it will lead to better decisions about care and less litigation for denial of care."
A good way to start truth-telling is by obtaining a signed consent or authorization for case management services for every patient in your caseload, says Catherine Mullahy, RN, BSN, CRRN, CCM, president of Options Unlimited in Huntington, NY, and one of two recipients of CMSA’s 1999 Case Manager of the Year Award. CMSA is based in Little Rock, AR.
"We obtain a signed authorization for case management services for every patient," she says. "That authorization explains who the case manager is, who the patient is, who the case manager represents, who the case manager will share information with, who is going to pay the patient’s bills. It’s good, sound business practice."
Informed consent also means telling patients about all of their options, not just the covered ones. "Even when a service isn’t covered, case managers have the responsibility to break the bad news," says Mullahy. "If you are the one planning for care and the plan only provides for 30 home health visits, and in your opinion the physician is recommending 60 home health visits, it’s your responsibility to try to find a way to cover those 60 visits. That’s the advocacy role. Look for other funding sources — community services, state and federal programs. Many of our patients are eligible for additional benefits from other sources. We can’t always obtain every service our patients need, even when they are medically necessary, but we must let patients know what their options include."
No assumptions, please
Making sure patients are getting what is appropriate and necessary also is important.
"Describe what care is necessary in layman’s terms and also make it clear when you will return to reassess or monitor the necessary care. Mark that date on your calendar so that you don’t fail to keep that appointment. Don’t assume someone else will take care of this patient’s follow-up or you will find yourself in troubled waters," says Mark O. Hiepler, JD, partner with the law firm of Hiepler & Hiepler in Oxnard, CA, which has won several of the nation’s largest lawsuits on behalf of patients against managed care organizations.
It’s also important to inform patients about all their options because patients may have resources the case manager is unaware of, adds John Banja, PhD, a medical ethicist and associate professor with the Emory University Center for Rehabilitation Medicine in Atlanta. "The family may be willing and able to tap into a savings account to pay for certain treatments or services out-of-pocket. By being less than honest, by withholding information about uncovered treatment options, the case manager denies the patient the opportunity to make personal decisions."
Sometimes, case managers avoid discussing uncovered benefits with patients because they don’t like saying "no" to patients, says Mullahy. "But not only do patients sometimes have resources we are unaware of, we can also sometimes persuade decision makers to consider paying for uncovered options if we do the proper analysis early on in the development of the care plan," he adds.
If the case manager advocates for the patient and does a financial analysis on the front side, decision makers sometimes agree to cover services not provided for in the plan, Mullahy says. "Yes, the plan does have limits. It only allows for 30 home health visits, but as the case manager you might also point out that the plan includes unlimited hospital visits. You argue that if the patient doesn’t receive the recommended 60 home health visits, the patient is likely to end up right back in the hospital with multiple complications. At that point, it doesn’t take a rocket scientist to help an executive in a managed care organization to say, Wait a minute. That’s good risk management.’ If we personalize the issues and do that cost-benefit analysis at the beginning of the care plan, we can sometimes convince decision makers to make changes in covered benefits."
Unraveling the ethics of case management perhaps should begin with case managers asking themselves some tough questions, the panelists told attendees. Those questions include:
1. What is my definition of a good case manager? "Ask yourself and your colleagues what a good case manager looks like," suggests Carol Taylor, CFSN, PhD, MSN, RN, an assistant professor at the Georgetown University School of Nursing and an ethicist and senior research scholar with the Center for Clinical Bioethics at Georgetown University Medical Center in Washington, DC. "Then, ask yourself what a successful case manager in your organization looks like. If there is a good match between your definition of a good case manager and your definition of a successful case manager in your organization, then you have a good work environment that supports your sense of integrity. On the other hand, if the two definitions are not the same, then you have a problem. You must ask yourself how long can you work in that environment without . . . selling your soul."
2. For whom am I responsible? "It seems to me that case managers face a theoretical conflict of interest every time they go to work," says Banja. "They rely on insurance contracts to make determination for how care is going to be allocated. But why do you and I buy insurance? We buy insurance to be spared out-of-pocket expenses when we need care. Why do insurance companies sell insurance? To make money by collecting monthly fees without paying any claims. Both sides always have this self-interest. The case manager stands in the middle as the bullets start to fly and tries to protect the interests of both sides."
Taylor looks back for answers. "Years ago when most of us were asked why we became health care practitioners, we said it was to help people. It was the simple and honest answer," she says. "It’s critical for us to ask, To whom am I primarily responsible?’ Look at the pattern of your decision making. Who we are becoming is shaped by what we do every day. You say your primary concern is for the patient, but is that your current reality?"
3. Do I have the tools necessary to make good decisions? "Case managers must accept responsibility for the decisions they make. If you don’t have the tools you need, you cannot make good decisions," says Mullahy. Those tools include the insurance contract, she notes. "You are held accountable to the terms of that insurance contract. Many case managers do have access to contracts. Patients are not entitled to receive all the care they want, but rather all that is covered and which is medically necessary. You must know what is covered to make good decisions. Too many case managers I speak with around the country have not even seen the terms of the contracts they work with."
Case managers must not only be aware of the terms of their patients’ insurance contracts, but also the contracts under which they work and are paid for their services, notes Hiepler. "You must beware of the appearances of evil if you are to remain ethical and avoid litigation. You may be doing everything right in advocating for your patient and developing the care plan, but does your contract for case management services include a bonus or incentive to reduce costs or utilization? Imagine how a jury unfamiliar with the way capitated contracts are written and enforced would react to learning that while your patient was suffering, you were vacationing in Hawaii as a reward for reducing patient utilization."
4. Does the decision I’m making feel right? "We can’t lose that sensibility of asking, Does this decision feel right?’" says Banja. "If we lose that, we become callous."
Annas agrees. "Too many times instead of asking, What is the right thing?’ managed care organizations today ask, Can I get sued?’" he says.
5. Is the decision I’m making legal? Asking whether your decision is legal may be relevant to deciding whether it is also ethical, notes Banja. Not all laws are completely ethical, but there is a symbiotic relationship between ethics and law. Most laws are at least based on ethics, he notes.
6. Where can I turn for support? Case managers faced with difficult decisions often feel that they are alone, notes Mullahy. "But you aren’t alone. There are others in your organization that feel the same as you do, find them and ask for their help."
Taylor agrees. "First, state your problem — your dilemma — very clearly. Second, talk to [those] who have same concerns you have to gain support for your decision. Then talk the language your administrators talk and try to advocate for change. Don’t go to an administrator and say, I think what we are doing is morally egregious.’ Instead, explain how the wrong decision may affect such issues as patient satisfaction and member retention. Explain the long-term consequences of your organization’s current policies. Tell your administrators, I am a loyal employee, but I am committed to my patient and I have some real concerns.’"
Mullahy also stresses the importance of using the right language when you approach decision makers within your organization. "Speak to the person you want to influence in the language they understand. If you speak to administrators using medical jargon, you may dazzle them with your footwork, but you will lose the battle. You have to put the issues involved in layman’s language."
To get administrators or employer groups to consider the long-term consequences of their decisions and policies, it helps to force them to consider how their decisions would look to others. "Ask them, How would you feel if your decision made the front page of the New York Times?’" suggests Banja. "When you deny someone appropriate care, you never know which patient is going to turn to a Mark Hiepler and file suit against your organization. Your administrators may not realize that their decisions will have consequences. Be the conscience of your organization. Don’t whine that one person can’t make a difference. That’s not getting anything done. Take that anger you feel and use that energy to work for change."
In addition to their peers, case managers can turn to their professional associations for guidance. "We have a standards of practice document from CMSA; we have ethics statements from our professional organizations, as well. These must be living documents in our organizations. Use them in your training of case managers. Refer to them when you are making difficult decisions."
7. Am I following the golden rule? Finally, Hiepler says to determine whether your decisions are both legal and ethical and avoid managed care litigation, simply apply the golden rule and treat your patients as you would want to be treated.
"You are involved in the lives of real people, not cases. You have a legal and an ethical responsibility to make sure patient needs are met," he says.
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